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The LAC Docket | Volume III, Issue 1

The Newsletter of the American Immigration Council’s Legal Action Center

January 16, 2013
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   Access to Counsel

LAC Challenges DHS Restrictions on Access to Counsel, Court Orders Release of USCIS Counsel Policies

AIC v. DHS and USCIS, No. 1:11-cv-01971 (D.D.C. filed Nov. 8, 2011)
AIC v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
AIC v. DHS and ICE, No. 1:12-cv-00856 (D.D.C. filed May 31, 2012)

The LAC continues to pursue FOIA litigation against USCIS, ICE, and CBP seeking to compel the release of records relating to noncitizens’ access to counsel in interactions with the immigration agencies.  In the suit against USCIS, a federal district court issued an opinion highly critical of the agency’s handling of the FOIA request, and ordered USCIS to turn over records that it previously had refused to produce.  The records USCIS must produce include PowerPoint slides used to train USCIS employees on how to interact with private attorneys and a memorandum establishing agency policy on the right to counsel for individuals seeking admission as refugees. 

Find out more about the status of these FOIA suits and view the documents USCIS, ICE and CBP have released on our Access to Counsel Before DHS webpage.

LAC Continues to Challenge the Denial of Advisals to Immigrants under Arrest, Issues Practice Advisory 

Varela v. Holder, No. 12-71263 (9th Cir. amicus brief submitted Dec. 21, 2012)

In December 2012, the LAC submitted an amicus brief challenging DHS’s failure to inform noncitizens prior to interrogation of the reason for their arrest, their right to legal representation, and that anything they say may be used against them in a subsequent proceeding.  In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that such advisals are not required by 8 C.F.R. § 287.3(c) until after formal proceedings have been initiated. The LAC argues that the BIA has misinterpreted the language and purpose of the regulation.  The LAC also published a practice advisory, Challenging Matter of E-R-M-F- & A-S-M-:  Warrantless Arrests and the Timing of Right to Counsel Advisals (November 2, 2012), to assist attorneys whose clients did not receive § 287.3(c) advisals prior to questioning.





LAC Wins Release of H-1B Fraud Documents

AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010)

The LAC, in cooperation with counsel at Steptoe & Johnson LLP, have pursued a FOIA lawsuit against DHS on behalf of AILA, seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program.  After protracted litigation, last spring, DHS released most of the documents sought. However, four documents remained in dispute.  In November 2012, DHS released in full the four remaining contested documents.  They provide troubling evidence of a near presumption of fraud in H-1B applications submitted by small and emerging businesses and for certain types of positions at such businesses.  Read more about this suit and view the documents at our Freedom of Information Act Litigation (H-1B) webpage.

Deferred Action for Childhood Arrivals (DACA)

The LAC continues to work with AILA and other partner organizations to provide legal trainings, respond to technical assistance requests, and engage in administrative advocacy to ensure successful implementation of DACA.  In December 2012, the LAC, AILA and CLINIC submitted joint comments on the instructions to Form I-131, Application for Travel Document.  The organizations commended USCIS for clarifying the eligibility criteria and required documentation for the various travel documents requiring Form I‐131, and for incorporating the Board of Immigration Appeals’ (BIA) holding in Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).  However, the comments encouraged USCIS to amend the instructions to better reflect the more flexible policies for advance parole outlined in the DACA FAQs, where acceptable types of travel are not limited to travel for “humanitarian, educational, and employment purposes.” 

In addition, the LAC is in the process of hiring a year-long DACA legal services fellow to work with the LAC and AILA to coordinate pro bono legal services for low-income DACA applicants. 

ICE Releases Some Documents and Court Orders Discovery in CAP FOIA Lawsuit

American Immigration Council, et al., v. DHS, No. 12-00355 (D. Conn. filed Mar. 8, 2012)

The LAC continues to litigate a FOIA lawsuit filed in March 2012, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut AILA chapter, to compel the release of records concerning the Criminal Alien Program (CAP).  Although CAP supposedly focuses on the worst criminal offenders, in fact, the program appears to target individuals with little or no criminal history and to incentivize pretextual stops and racial profiling.  To date, ICE has released 473 responsive records, which the LAC is in the process of analyzing.  In early December, 2012, the court deferred a ruling on the government’s motion for summary judgment and instead granted Plaintiffs’ motion to depose Jamison Matuszewski, the Unit Chief for the Criminal Alien Program.  The deposition is scheduled to take place in early February, 2013.  Read the documents ICE released at our Criminal Alien Program webpage.

AIC Challenges Denial of Motion to Suppress Evidence Based on Unlawful Police Conduct

Jimenez-Domingo v. Holder, No. 12-14048-D (11th Cir. amicus brief submitted Nov. 27, 2012) 

The LAC submitted an amicus brief in a case in which a noncitizen is challenging the Board of Immigration Appeals’ denial of his motion to suppress evidence.  The LAC argues that local police violated the Fourth Amendment by unnecessarily prolonging an individual’s detention based solely on the suspicion that he was not lawfully present in the United States.  While acknowledging that the Supreme Court has held that evidence unlawfully obtained by federal immigration officers need not always be excluded from removal proceedings, the LAC noted that the Court’s rationale does not apply to situations in which evidence was obtained through a constitutional violation by local law enforcement officers.



   Access to Courts

LAC Continues to Challenge the “Departure Bar,” Addresses Issues Concerning Return

Perez Santana v. Holder, No. 12-2270 (1st Cir. amicus brief submitted Jan. 4, 2013)

The LAC, in collaboration with the National Immigration Project of the National Lawyers Guild, continues to challenge the “departure bar” in federal courts of appeals, contesting the validity of regulations preventing immigrants from seeking reopening or reconsideration of their removal cases after they have been deported.  To date, nine courts of appeals have struck down the regulation.  This month, we submitted an amicus brief to the First Circuit Court of Appeals, one of the two circuits that has not addressed the issue. 

In addition, the LAC, in conjunction with the National Immigration Project and the Immigrant Rights Clinic at NYU School of Law, issued a practice advisory, Return to the United States after Prevailing on a Petition for Review or Motion to Reopen.  The advisory addresses the government’s 2012 return directive and describes steps a lawyer can take to try to obtain return under the directive.  It also summarizes potential litigation options if the government refuses to facilitate or unreasonably delays return.

LAC Challenges Lack of Equitable Tolling of Motion to Reopen Filing Deadline

Ruiz-Turcios v. Holder, No. 12-11503 (11th Cir. amicus brief submitted Jan. 2, 2013)

In Ruiz-Turcios, the Eleventh Circuit Court of Appeals denied a petition for review challenging whether the 90-day limit for filing motions to reopen is mandatory and jurisdictional.  The LAC and the National Immigration Project of the National Lawyers Guild submitted an amicus brief in support of a petition for rehearing in the case.  We argue that the Eleventh Circuit’s decision cannot be reconciled with Supreme Court precedent regarding other statutory filing deadlines and that, absent equitable tolling, noncitizens facing removal would be denied a critical opportunity to present their claims.



Systemic Reforms

   Systemic Reforms

Fourth Circuit Overrules BIA’s Adverse Ruling on Waiver Eligibility

Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012)

In November 2012, the Fourth Circuit issued a unanimous ruling that will allow LPRs whose removal would cause extreme hardship to family members to apply for waivers that would enable them to remain here.  The ruling is the latest opinion from a federal appellate court to reject the contrary decision of the Board of Immigration Appeals in Matter of Koljenovic, 25 I&N Dec. 219 (2010).  In its amicus brief, the LAC argued that the Board ignored the plain language of the Immigration and Nationality Act, which distinguishes between applicants who entered the country as LPRs and those who gained LPR status post-entry.

Duran Gonzales Update: Court Issues Decision in Related Case, Orders Supplemental Briefing

Duran Gonzalez v. DHS, No. 09-35174 (9th Cir. rehearing petition filed Dec. 9, 2011)

This case is a Ninth Circuit wide class action involving whether certain noncitizens (namely, those inadmissible under INA § 212(a)(9)(C)(i)(II)) are eligible to adjust status under former INA § 245(i).  The Ninth Circuit initially had held that they are, but overturned that ruling in a 2007 decision.  In a subsequent decision, the court held that the 2007 decision applies retroactively even to class members who applied for adjustment before the court announced the new rule. Through a petition for rehearing, the plaintiffs are arguing that the adverse decision should not apply retroactively to class members who relied on the prior case law permitting them to adjust.

In October 2012, the Ninth Circuit Court of Appeals issued an en banc decision in Garfias-Rodriguez v. Holder that may have important implications for Duran Gonzalez class members. The court overruled the retroactivity analysis that the panel had applied in Duran Gonzales.  This means that some Duran Gonzales class members still have viable claims that the adverse 2007 decision should not apply retroactively and that they should be permitted to apply for adjustment of status.  In response to a court order, the parties submitted supplemental letter briefs to the Ninth Circuit on December 10, 2012, addressing Garfias-Rodriguez’s impact on Duran Gonzales.

Read more about the status of this case and view the court documents on our Duran Gonzalez Class Action webpage.


Practice Advisories

Regulatory Comments

The LAC, in collaboration with AILA, drafted and submitted comments to EOIR regarding its “Retrospective Regulatory Review.”  We urged EOIR to amend regulations pertaining to motions to reopen, stays of removal, bond hearings, telephonic and video hearings, filing and service of documents and decisions, and stipulated removal orders.



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